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June 03, 2012

ADA: Another Goldmine For Professional Plaintiffs

In an article in the American Banker last week (paid subscription required), reporter Jeremy Quittner revealed that notwithstanding the fact that banks were given two years to comply with regulatory requirements to make ATMs accessible to the visually impaired by March 15, 2012, a number of banks have failed to make the grade. As a result, class action plaintiffs' attorneys, likely eyeing the March 15th deadline like a bobcat eyes an unaware rabbit that's blissfully munching on your rosebushes, have been suing the bejeebers out of non-compliant banks in some parts of the country. One defendant had a 118 ATMs in compliance, but the two remaining non-compliant machines caused the bank a settlement (amount undisclosed) and, what's just as painful, ongoing monitoring of its progress to come into compliance. Much of that monitoring will be conducted by the plaintiffs' law firm. We expect that their approach will be as impartial as ours would be if we were monitoring a class action plaintiffs' firm for compliance with a consent order and the penalty for noncompliance was having a hungry ferret in a burlap sack tied to your right thigh.

While I'm usually reflexively sympathetic to banks and antithetic to trial lawyers, in this case I have to agree with the sentiments of many bankers who were interviewed by Quittner.

Some bankers agree that they had plenty of time to get into compliance.

"While the rules were just finalized recently, they've been the subject of debate for over 10 years," Jonathan Velline, executive vice president of ATM banking and store strategy for Wells Fargo (WFC), wrote in an email.

As Quitnner points out, it's easier for a Leviathan like Wells Fargo to throw a lot of money and talent at compliance, while smaller banks can often be stretched by the burden. In addition, the cost of upgrading, or even replacing, the machines, can be expensive. Nevertheless, these are the rules of the game, and if you want to play, you have to play by the rules.

In some respects, this reminds me of the failure of some banks to comply with the multifactor authentication in online banking guidance when it was first issued. Some of the smaller banks adopted a "What, Me Worry?" attitude and after the deadline passed, were caught in flagrente delicto, or, in more colloquial terms, with their compliance pants down around their ankles. While I have no love for the vultures members of the bar who specialize in suing banks, with respect to this issue, banks who are still non-compliant just need to buckle down and "get 'er done," and hope that, in the interim, they somehow escape the gaze of the wolves at their doorsteps.